Summary: Donald
W. Jacklin, who owns mules, contracted with claimant for the training
and racing of his mules over a number of years. In a prior decision, the
WCC found that contracts for training, which were accomplished in Montana,
were separable from contracts for racing. After injury in Nevada during
the racing season, claimant filed a workers' compensation claim in Montana.
Jacklin moves for summary judgment, arguing no triable issue of fact on
the question of whether he was required to have workers' compensation
insurance in place covering Jacklin's racing work. As set out in the Court's
prior order, under applicable law, for Montana workers' compensation requirements
to apply, Jacklin must have either primarily controlled Sandoval's activities
from Montana or Sandoval's duties must have been primarily carried out
within Montana. The evidence is undisputed that Jacklin remained in Idaho.
Jacklin submitted as "undisputed facts" a racing schedule for
1995, showing no races took place in Montana, meaning none of the summer
1995 work was to occur in Montana. Claimant responded by affidavit stating
his "understanding" that some races would have occurred in Montana.
Jacklin responded with an affidavit of the Executive Secretary for the
Montana Board of Horse Racing stating that "no mule racing has occurred
in Montana since 1994." Claimant did not dispute this affidavit.

Held: Summary
judgment granted. Conclusory or speculative statements such as an "understanding"
do not contradict facts stated in affidavits or sworn testimony. Uncontroverted
facts establish that the 1995 summer work was not in Montana.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code: Workers' Compensation Court Rules:
ARM 24.5.329. Conclusory or speculative statements such as an
"understanding" do not contradict facts stated in affidavits
or sworn testimony such as to warrant denial of a motion for summary
judgment.

Employment: Montana
Employment. As set out in the Court's prior order in this case,
for Montana workers' compensation requirements to apply, Jacklin must
have either primarily controlled Sandoval's activities from Montana
or Sandoval's duties must have been primarily carried out within Montana.
The evidence is undisputed that mule owner, who hired claimant to
race his mules, remained in Idaho. Owner submitted as "undisputed
facts" a racing schedule for 1995, showing no races took place
in Montana, meaning none of the summer 1995 work was to occur in Montana.
Claimant responded by affidavit stating his "understanding"
that some races would have occurred in Montana. Jacklin responded
with an affidavit of the Executive Secretary for the Montana Board
of Horse Racing stating that "no mule racing has occurred in
Montana since 1994." Claimant did not dispute this affidavit.
Summary judgment granted because conclusory or speculative statements
such as an "understanding" do not contradict facts stated
in affidavits or sworn testimony.

Jurisdiction:
Montana Employment. As set out in the Court's prior order in this
case, for Montana workers' compensation requirements to apply, Jacklin
must have either primarily controlled Sandoval's activities from Montana
or Sandoval's duties must have been primarily carried out within Montana.
The evidence is undisputed that mule owner, who hired claimant to race
his mules, remained in Idaho. Owner submitted as "undisputed facts"
a racing schedule for 1995, showing no races took place in Montana,
meaning none of the summer 1995 work was to occur in Montana. Claimant
responded by affidavit stating his "understanding" that some
races would have occurred in Montana. Jacklin responded with an affidavit
of the Executive Secretary for the Montana Board of Horse Racing stating
that "no mule racing has occurred in Montana since 1994."
Claimant did not dispute this affidavit. Summary judgment granted because
conclusory or speculative statements such as an "understanding"
do not contradict facts stated in affidavits or sworn testimony.

¶1 For a second time, this
case is presented on a motion for summary judgment. This time the Court
grants Donald W. Jacklin's (Jacklin) motion for summary judgment and dismisses
the petition.

Factual Background

¶2 Jacklin owns mules. Joseph
I. Sandoval (Sandoval) is a mule trainer and jockey. In 1992, 1993, 1994,
and 1995, Jacklin hired Sandoval to train and race his mules in various
western states. Jacklin, an Idaho resident, delivered the mules to Sandoval
in Hamilton, Montana, in the winter of each year so Sandoval could condition
and train the mules for the upcoming racing season. The conditioning and
training took place in Hamilton.

¶3 Each spring Jacklin and
Sandoval entered into a written agreement for the racing season. In my
prior decision, I determined that the written contracts for the racing
seasons, including the 1995 season, were severable and separate from the
oral, winter training arrangements.

¶4 Sandoval was injured in
Nevada on June 3, 1995, during the racing season. He did not work thereafter,
however, Jacklin hired a new trainer and continued to race his mules.
While a substantial portion of the 1992 through 1994 racing seasons were
spent in Montana, the evidence presented to the Court at the time of the
prior decision indicated that racing did not occur in Montana during 1995.
I was unable to ascertain what amount of the racing season, if any, Sandoval
would have spent in Montana during the 1995 summer season.

¶5 The fact that Sandoval was
a Montana resident in 1995 did not automatically subject Jacklin, an Idaho
resident, to Montana workers' compensation laws. As applicable to this
case, Montana workers' compensation statutes required that "Jacklin must
have either primarily controlled Sandoval's duties from Montana or Sandoval's
duties must have been primarily carried out within Montana." (Order Denying
Summary Judgment at 4.) Since Jacklin was in Idaho, that meant that "Sandoval's
duties must have been primarily carried out within Montana." (Id.)
Since the facts presented in connection with the earlier motions for summary
judgment did not show whether Sandoval would have worked primarily in
Montana during the 1995 summer racing season, the motions were denied
and the matter was scheduled for trial.

¶6 Jacklin's latest motion
for summary judgment provides additional facts concerning Sandoval's expected
work in Montana during the summer of 1995. Initially, Jacklin has provided
an affidavit showing that his mules did not race in Montana during 1995.
He has supplied a schedule of the races in which his mules participated.
Sandoval has not provided any evidence undercutting the information, thus
the information is deemed uncontroverted.

¶7 The 1995 races took place
in California, Nevada, Idaho and Arizona, as follows:

May 26, 27, and 28 Bishop,
California

June 3 and 4 Winnemucca,
Nevada

June 10 and 11 Boise, Idaho

June 15 Jerome, Idaho

June 26 Pleasanton, California

July 3 Pleasanton, California

July 8 Pleasanton, California

July 18 Stockton, California

August 6 Santa Rosa, California

August 11 Ferndale, California

August 19 Ferndale, California

August 23, 24, and 25 Sacramento,
California

September 2 Sacramento,
California

October 11 Fresno, California

October 15 Fresno, California

October 28 Yuma, Arizona

(Brief in Support of Donald
W. Jacklin's Motion for Summary Judgment at 2.) Jacklin's affidavit also
states that the mules would never have returned to Montana during the
racing season. (Supplemental Affidavit of Donald W. Jacklin at 2.)

¶8 In my prior Order regarding
the earlier cross-motions for summary judgment, I found, as an uncontested
fact, that no mule racing occurred in Montana in 1995. (Order Denying
Summary Judgment, Fact 8 at 2-3.) That fact is raised anew in the present
motion. Jacklin's affidavit states that there was no mule racing in Montana
in 1995, or for that matter in 1996, 1997, or 1998. (Jacklin Aff., ¶3
(12/14/98 execution - 1/13/99 filing). In a counter-affidavit, Sandoval
asserts his "belief" that mule racing did take place in Montana in 1995.
In paragraph 3 of his affidavit, filed February 5, 1999, he states:

It was my understanding
that in 1995, we would follow the same general routine as in past years.
Mule racing took place with horse racing, and the 1995 horse racing
dates were generally the same as 1992, 1993 and 1994. Don Jacklin and
I attended a Board of Horse Racing meeting in February, 1995, to discuss
speed indexes for the 1995 mule racing season. He and I discussed that
the mules would race in Montana in 1995. Thus, I believe if I had not
been injured, mule racing would have taken place in Montana in 1995
similar to the 1992, 1993 and 1994 race seasons because race dates were
scheduled in Montana.

(Affidavit of Joseph I. Sandoval
at 2.)

¶9 In reply to Sandoval's affidavit,
on February 12, 1999, Jacklin supplied the Court with an affidavit of
Sam Murfitt, Executive Secretary for the Montana Board of Horse Racing.
In that affidavit, Murfitt confirms that "no mule racing has occurred
in Montana since 1994." (Affidavit of Sam Murfitt ¶ 3.) Sandoval has not
sought permission of the Court to reply to that affidavit. He has not
sought oral argument, as allowed by ARM 24.5.329 (5).

(2) Subject to the other
provisions of this rule, summary judgment shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and responses
to requests for production, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

ARM 24.5.329(2). Where, as
in this case, the moving party presents evidence of a fact, the opposing
party may not simply deny the fact but must present admissible evidence
to controvert it:

The burden of proof rests
with the party seeking summary judgment to provide the court with evidence
which excludes any real doubt as to the existence of a genuine issue
of material fact. Berens v. Wilson (1990), 246 Mont. 269, 271,
806 P.2d 14, 16. Only after the moving party has met this burden of
proof does the burden shift to the nonmoving party to show that a genuine
issue of material fact exists. Morton v. N.W.M., Inc. (1994),
263 Mont. 245, 249, 868 P.2d 576, 579. "When raising the allegations
that disputed issues of fact exist, the nonmoving party has an affirmative
duty to respond by affidavits or other sworn testimony containing material
facts that raise genuine issues; conclusory or speculative statements
will not suffice." Koepplin v. Zortman Mining (1994),
267 Mont. 53, 59, 881 P.2d 1306, 1309.

HKM Associates v. Northwest
Pipe Fittings, Inc., 272 Mont. 187, 193, 900 P.2d 302, 306 (1995)
(emphasis added). Sandoval has not satisfied his burden. His "belief"
that there was mule racing in Montana in 1995 does not raise a question
of fact where the affidavit of the Executive Secretary for the Montana
Board of Horse Racing establishes that mule racing did not in fact take
place in 1995.

¶11 Sandoval presents no other
evidence raising a material issue of fact concerning the time he might
have spent with the mules in Montana in 1995 absent his injury. He does
not contradict the 1995 schedule of races for Jacklin's mules. While he
has presented evidence of time spent in Montana in prior years, those
were years in which Montana had mule races. None of the evidence he has
mustered supports a finding that but for Sandoval's injury Jacklin's mules
would have spent more time in Montana in 1995 than in any of the other
states in which they were raced. Lacking such evidence, I conclude that
Montana workers' compensation laws do not apply to the 1995 racing season
agreement between Sandoval and Jacklin.

JUDGMENT

¶12 Based on the foregoing
discussion, IT IS ORDERED AND ADJUDGED that:

¶13 1. The motion for summary
judgment is granted.

¶14 2. The petition in this
matter is dismissed with prejudice.

¶15 3. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.

¶16 4. Any party to this dispute
may have 20 days in which to request a rehearing from this Summary Judgment.